Environmental Law

Is Your Mulch Processing Facility in Compliance with the Law?

New Regulations took Effect on November 4, 2017

Effective November 4, 2017, Mulch Processing Facilities in the state of New York are subject to regulation under the state’s revised and updated Solid Waste Management Facilities rules. Mulch Processing Facilities create a product derived from tree debris, yard trimmings, and other suitable woody material, which is intended for use on soil surfaces to prevent the growth of weeds and minimize erosion. The New York Department of Environmental Conservation (NYSDEC) is regulating the production and storage of mulch in order to reduce environmental impacts including dust, odor, adverse water quality, and fires.

A Mulch Processing Facility is defined as a facility that processes yard trimmings (other than grass clippings), tree debris, and wood debris into mulch. On December 28, 2017, the New York Department of Environmental Conservation announced the availability of a new guidance document intended to assist the owners and operators of mulch processing facilities.

The following are not regulated as a Mulch Processing Facility, but are subject to separate and distinct regulation under the NYSDEC’s full set of Solid Waste Management Facilities codes and regulations:

the processing of construction and demolition (C&D) debris into mulch;

a facility for combustion or thermal treatment; and

a facility that composts yard trimmings.

For purposes of clarification, unlike the processing of mulch, composting is the aerobic, thermophilic decomposition of organic waste to produce a stable, humus‐like soil amendment used as a source of nutrients, organic matter, liming value, etc.

Regulatory Overview

Mulch Processing Facilities are regulated under one of three different ‘tiers’ based on the total quantity of material on site at any given time, including both incoming material as well as processed material. The three regulatory tiers consist of exempt facilities and those that need to either be registered or permitted. See the chart below for a breakdown of the three regulatory categories.

In addition to the types and quantities of materials accepted, facilities will be held to one or more of the following:

pile size and separation distance restrictions;

contaminant preclusion and removal;

the marketing and movement of their product;

storage restrictions and time frames;

temperature monitoring and pile restacking (See Page 8);

the development of run‐on and run‐off plans; and

buffer zones from properties and water resources.

Adulterated or Contaminated Materials

Mulch Processing Facilities can accept, process, and store the following materials:

yard trimmings (other than grass clippings);

tree debris including tree and shrub parts, including branches, stumps, and trunks, as well as other similar woody vegetation;

wood debris including unadulterated wood pallets and unadulterated wood that originates from wood product manufacturing or other similar sources; and

finished mulch products generated elsewhere.

Mulch Processing Facilities are not permitted to accept, process, or store the following materials:

construction and demolition (C&D) debris; and

adulterated or contaminated wood.

Spotting contamination in a waste source or finished product pile can be challenging. Contamination can range from unwanted additions to the pile such as rocks and plastic, to adulterated or contaminated wood products. Physical contaminants can damage the processing equipment, and lead to a low-quality product. Adulterated or contaminated wood can pose a significant health risk when exposed to humans, wildlife, and the environment.

Types of adulterated or contaminated wood:

adhesives and paint;

creosote‐treated wood;

CCA‐treated wood;

asbestos‐contaminated material; and

other pesticide or pressure treated lumber.

CCA‐treated lumber

often has a visibly greenish hue

Creosote‐treated lumber is found frequently in railroad ties and marine structures

Small contaminants

from mulch

Types of physical contamination

plastics

C&D debris

rocks, stones

garbage, strings and rope; and

materials that will readily compost and generate heat.

Odor Issues

When managed properly, and only exposed to aerobic conditions, mulch piles should not produce objectionable odors. Facilities must be mindful of neighbors – odor inspections should be conducted along the perimeter of the facility, recorded, and any odor complaints need to be addressed. If necessary, the use of odor neutralizing sprays can be implemented. However, it is important to note that objectionable odors from a mulch pile may be indicative of other issues. If piles become too large, hot, or wet, they may undergo anaerobic decomposition, and thus emit odors. For double ground mulch, keeping these piles as a coarse grind while they “age” until they are closer to sale can minimize odor risks. Turning or restacking piles can also help to prevent odors (see: Fire Risk and Safety section) and should be done under wind conditions that minimize offsite impacts.

Pile Size and Storage Limitations

Pile size limitations in Part 361‐4 are based on the type of grind the material has been through as well as the location of the facility.

Piles must be triangular in cross‐section and sized to minimize anaerobic conditions within the pile, which will limit odor impacts as well as reduce the risk of fires. Note: All piles must be at least 10 feet apart. Standing water on the storage area must be minimized.

Recordkeeping and Reporting

All facilities must keep records of daily operations and must report annually to DEC by March 1st of each year.

Site Design Criteria

Mulch Processing Facilities must employ best management practices appropriate to their operation to restrict the amount of run‐on and

run‐off generated on the site. Facilities must also adhere to specified buffer zones between property, water features, and all materials (including both processing and storage, listed below).

Pollution Prevention

Mulch processing sites must take care to prevent water pollution resulting from their processing activities. Because water both entering and exiting the site have the potential to bring in and off contaminants, all registered and permitted facilities must have a written run‐on and run‐off plan that is approved by DEC.

The water sources listed above can contain many different contaminants:

BOD/COD

Nutrients

Turbidity

Fire Risk and Safety

Tree debris and wood debris are highly combustible and there are many ways a mulch pile could catch fire, either spontaneously or through human action. These fires are difficult to extinguish and have a high risk of spreading to nearby piles and structures. It is important for facilities to have a plan in place and work with their local fire departments to ensure preparedness in case of a fire emergency (including planning for a reliable water supply).

Myth: Driving heavy machinery on mulch piles to process them for a better product, compress them for added space, and reach the tops of piles are part of normal operation.

Compressing a mulch pile (making it denser) is known to cause spontaneous fires. When the pile is compressed, aeration is stopped, and the pile becomes anaerobic and begins to ‘cook.’ Temperatures can easily reach unsafe levels.

When oxygen/air is introduced suddenly into a hot, anaerobic pile, flash fires can occur. Keep the piles loose!

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you or your municipality operates a mulch processing facility or any other waste management facilities and have questions or need assistance in complying with new, amended or longstanding solid waste management regulations or any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

My last blog entry discussed New York’s regulation of wetlands. I was going to discuss permit application process with this entry, but after some feedback, I thought I should discuss federal regulation of wetlands instead.

As I mentioned earlier, wetlands are protected under Section 404 of the Clean Water Act (“CWA”), which was implemented more than 45 years ago. It regulates discharges of dredged or fill material into waters of the United States, including wetlands. As a general rule, Section 404 prohibits discharges of dredged or fill material if:

a practicable alternative exists that is less damaging to the aquatic environment; or

the nation’s waters would be significantly degraded.

In certain circumstances, discharges of dredged material or fill may be allowed under the CWA. To address this issue, Section 404 sets up a permit requirement and review process. If a developer reasonably needs to discharge dredged or fill material into waters of the United States, then that developer may be able to get a permit under Section 404 permitting it to do so under certain defined conditions.

Many kinds of projects might require a Section 404 permit. The most common might be water infrastructure projects, like dams, docks and levees, as well as other infrastructure projects, like bridges and roads.

There are two kinds of permits under Section 404: individual and general. These are very different kinds of permits with very different purposes. An individual permit has the ability to hold up a project for some time while its merits are reviewed. A general permit, on the other hand, can help expedite a project. So what’s the difference between the two?

Individual permits are site specific. They cover activities that have potentially significant impacts at a site. U.S. Army Corps of Engineers (“ACOE”) reviews and evaluates these permits under the criteria set forth in the Section 404(b)(1) guidelines, which are created by the U.S. Environmental Protection Agency (“EPA”). This review process can take time.

General permits, on the other hand, are not site specific. They are issued on a national, regional, or state basis and cover certain categories of activities that are pre-determined to have only minimal adverse effects. A general permit expedites the process because it eliminates the need for individual review. It will be granted as long as conditions for the general permit are met.

Several federal agencies play a role in wetland regulation and protection and the roles they play are different. The most active are ACOE, EPA and U.S. Fish and Wildlife Service (“FWS”). Let me end this entry by describing what role each agency plays.

ACOE oversees wetlands with regard to navigation and water supply. It administers most of the wetlands protections program. It reviews and issues determinations on Section 404 permit applications, develops wetlands policy and guidance documents and enforces permit provisions.

EPA generally protects wetlands from pollution. Among other things, it develops and interprets policy, guidance, and environmental criteria used in evaluating permit applications and reviews comments made on these applications.

FWS manages fish and wildlife, including residing in wetlands. It evaluates impacts on fish and wildlife from federal projects, including ones subject to the requirements of Section 404.

My last blog entry discussed what wetlands are and why they are so important. This blog entry talks about how they are regulated in New York State.

Wetlands are regulated by State and Federal law. Federally, wetlands are protected by the U.S. Army Corps of Engineers (“ACOE”) under Section 404 of the Clean Water Act. In New York, they are protected under the Freshwater Wetlands Act (“FWA”) of 1975. The implementing regulations of the FWA are at 6 N.Y.C.R.R. Parts 663 – 665.

The NYS Department of Environmental Conservation (“DEC”) regulates freshwater wetlands “to preserve, protect and conserve” them and their benefits. DEC classifies them at Part 664.5 into four categories: I, II, III or IV. Class I wetlands are the most valuable. They often feature habitat of endangered or threatened species and, therefore, are the most protected. Class IV are the least valuable and least protected.

Not every wetland is regulated under State law. To be protected, a freshwater wetland must be 12.4 acres or larger, except in the Adirondack Park, where a lower threshold applies. Smaller wetlands may be protected, too, but only if they are considered of unusual local importance. Around every wetland is an “adjacent area” of 100 feet. This adjacent area also is regulated to provide protection for the wetland.

Basically, DEC regulates certain activities in freshwater wetlands to prevent or mitigate impairment of wetland functions. The amount of regulation turns on the nature of the activity and its potential effect on a wetland.

For instance, activities like normal agricultural practices, harvesting of natural products and recreational activities (fishing, hunting, trapping, hiking, swimming, picnicking, or firewood collection) or routine maintenance (e.g., dock repair) are exempt from regulation. More invasive activities, which can adversely impact a freshwater wetland, are regulated. These activities typically include actions like construction, excavation, placement of fill, drainage, clear-cutting and application of pesticides and require a permit under the FWA.

If you plan to engage in a regulated activity and suspect you are near a regulated wetland, you need to know if you must have a permit. One way to find out is to review the DEC’s wetland maps and find your property. Check whether it is in, near or adjacent to a protected wetland. Remember that not all wetlands are protected by DEC, but most wetlands will come under the jurisdiction of the ACOE, whether protected by DEC or not.

If your property has a protected wetland on or near it, or your project looks like it comes within the area adjacent to the wetland, you may want to contact the DEC Regional Office where the property is located and request DEC to visit your site and mark the wetland boundary. You can hire a private consultant as well, but there likely will be a fee.

If your project involves a regulated activity, and it is within a freshwater wetland area, you will need a permit from DEC. Essentially, DEC’s permit standards require that impacts to wetlands be avoided and minimized, where possible. If the activity you propose will not seriously affect the wetland, then absent extenuating circumstances, DEC likely will issue a permit, possibly with various conditions. If your proposed activity will seriously affect the wetland, the benefits gained by allowing the action to occur must outweigh the wetland benefits lost before a permit can be issued. DEC often requires compensatory mitigation for significant impacts to wetlands before a permit can issue, such as creating or restoring wetlands to replace the benefits lost by the proposed project’s impact on the nearby wetland.

Getting a permit can be a tricky thing. In my next blog entry, I’ll discuss the permit application process.

This first case is an appropriate follow-up to my August 30, 2017 blog post, which discussed EPA’s Lead Renovation, Repair and Painting Rule. On September 7, 2017, Maureen S. Walck, of Lockport, NY, pleaded guilty to failure to provide a lead paint hazard warning notice. The charge carries a maximum sentence of one year in prison and a fine of $100,000.

The defendant, a real estate broker with RealtyUSA, executed a contract on January 15, 2014, with the owner of a residence in Lockport, NY. The residence was built in approximately 1900, and the owner was aware that lead-based paint hazards were present. The owner informed Walck of the hazards and showed a copy of the lead-based paint inspection reports to the defendant.

On January 25, 2014, a prospective buyer made an offer to purchase the residence. As part of the sales contract, a lead-based paint rider and disclosure form was included. After an inspection of the residence, and after reviewing the lead-based paint records, the prospective buyer cancelled the sales contract.

On February 6, 2014, a second prospective buyer made an offer to purchase the residence. Again as part of the sales contract, another lead-based paint rider was included. However, unlike the rider with the first prospective buyers, Walck indicated that the seller had no knowledge of lead-based paint and/or lead-based paint hazards at the residence and that there were no records pertaining to lead-based paint and/or lead-based paint hazards for the residence. The second prospective buyers purchased the residence and closed on the residence on April 11, 2014.

In September 2015, the new owners learned that their child was diagnosed with lead poisoning.

The investigation was conducted by EPA’s Criminal Investigation Division, and the U.S. Department of Veterans Affairs Office of Inspector General, Criminal Investigations Division. Sentencing is scheduled for December 11, 2017.

St. Lawrence County Man Pleads Guilty to Clean Water Act Crimes

On September 7, 2017, Acting United States Attorney Jaquith announced Michael J. Ward, age 54, of Gouverneur, New York, pled guilty, in Binghamton federal court, to three felony counts of violating the Clean Water Act.

In pleading guilty, Ward admitted that between January 2013 and September 2015, while employed as the Technical Director in charge of environmental compliance at the APC Paper Group paper mill in Norfolk, New York, he caused the paper mill to violate its Clean Water Act permit by discharging wastewater containing excessive levels of biochemical oxygen demand (“BOD”) into the Raquette River. BOD is the amount of dissolved oxygen necessary for microorganisms in the water to break down organic material. BOD levels also provide an index for measuring the effect discharged wastewater will have on the body of fresh water receiving it. In this case, the paper mill’s Clean Water Act permit restricted the amount of BOD that could be discharged through wastewater. Ward admitted in court today that he was responsible for monitoring, calculating, and reporting the paper mill’s compliance with its Clean Water Act permit. He further admitted that he hid and falsified data regarding the BOD levels in the mill’s wastewater discharges, thus allowing the mill to violate its Clean Water Act permit on a regular basis. Additionally, he repeatedly falsified monthly reports to the DEC to hide the continuing Clean Water Act violations. The defendant’s illegal conduct was discovered after he was fired by APC Paper Group for unrelated reasons in the fall of 2015.

The charges carry a maximum sentence of up to 3 years in prison, a fine of up to $800,000, and a term of supervised release of up to 1 year. Ward will be sentenced in federal court in Binghamton on January 26, 2018 by Senior United States District Judge Thomas J. McAvoy.

This case was investigated by EPA’s Criminal Investigation Division, and the New York State DEC, Division of Law Enforcement and Bureau of Environmental Crimes Investigation Unit (BECI). The case is being prosecuted by DOJ’s Assistant U.S. Attorney.

Cleveland, Ohio Man Sentenced to Nearly Three Years in Prison for Illegal Demolition of Former Factory

On September 21, 2017, William S. Jackson, age 47, was sentenced to 33 months in prison and ordered to pay $7.8 million in restitution. Jackson was sentenced for violating the Clean Air Act by failing to remove asbestos prior to demolishing a former factory in Cleveland, law enforcement officials said.

Christopher Gattarello leased the former National Acme facility at 170 East 131st Street in Cleveland in June 2011. The 570,000 square-foot facility was built in 1917 and was used for manufacturing for nearly a century. It is located near many homes and a school. In July 2011, a company estimated removing asbestos from the facility would cost $1.5 million.

Defendant Jackson operated a Cleveland building demolition company. In July 2012, he submitted a notice of demolition with the Cleveland Division of Air Quality stating there was no asbestos in the National Acme facility. About 10 days later, the CDAQ rejected Jackson’s notice because it was incomplete and stated demolition “may not begin” until a proper notice was submitted and approved. About 10 days after that, on July 21, 2012, Jackson began demolition at the owner’s direction.

Asbestos fibers were released into the environment during demolition. Debris accumulated outside the facility from demolition and asbestos in the piles were exposed to the wind and elements.

The owner was sentenced to nearly five years in prison for his crimes earlier this year.

“The defendants in this case put unsuspecting workers at great risk and threatened the health and safety of the community when they failed to follow proper procedures for removing asbestos,” said Scot Adair, Acting Special Agent in Charge of EPA’s criminal enforcement program in Ohio. “This case demonstrates that EPA and its law enforcement partners will prosecute those who willingly break environmental laws in an attempt to cut costs.”

The case was investigated by EPA’s Criminal Investigation Division, the State of Ohio Environmental Protection Agency, the Ohio Bureau of Criminal Investigation and the Internal Revenue Service. The case is being prosecuted by DOJ’s Assistant U.S. Attorneys.

On October 23, 2017, NYSDEC ECO Jerry Kinney completed an investigation into the illegal disposal of a commercial business located at 2799 State Route 20 in the town of Sheridan. The automotive garage had been in poor condition for several years and the owner of the building decided to borrow a friend’s excavator and dig a large hole in an attempt to demolish and bury the building. Nearly half the demolished building was placed in the hole prior to ECO Kinney receiving an anonymous complaint. After speaking with the property owner, ECO Kinney determined that asbestos abatement was not completed as required for all commercial demolitions. The waste needed to be legally disposed of at a regulated facility and not buried on site. The owner was cited for illegal disposal of solid waste, returnable to the Town of Sheridan Court.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

Our environmental work for clients often includes issues related to wetlands, yet many people do not know what they are, why they are so important or how they are regulated. This blog entry talks about what wetlands are and the crucial role they play in the environment.

So what, exactly, is a wetland? In our common experience, wetlands might be called swamps or marshes or even bogs. Basically, wetlands are transition areas between uplands and aquatic habitats. While wetlands vary widely depending on geography, there are two general categories: tidal wetlands and non-tidal wetlands. Tidal wetlands are along the coast and non-tidal wetlands are inland.

Does the presence of standing water mean that an area is a wetland? Maybe. The U.S. Environmental Protection Agency explains that “wetlands are areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.” Note that standing water may not be present year round in a wetland—so if you do not see standing water in a possible wetland area, this does not mean the area is not a wetland. Some wetlands have standing water only during certain times of the year. This is a crucial fact to keep in mind before disturbing any area that may be located in a possible wetland.

Wetlands indisputably play a crucial role in the environment. The New York State Department of Environmental Conservation, which enforces state wetlands regulations, identifies six critical roles that wetlands provide:

Flood and Storm Water Control

This is one of the more important roles that wetlands play. Wetlands mitigate flood and storm water flow by absorbing, storing, and slowing down the movement of rain and melt water. They are a natural and important flood control measure.

Surface and Groundwater Protection

Wetlands help maintain base flow in streams and rivers and support ponds and lakes. They also can help recharge groundwater supplies. Wetlands also improve water quality by absorbing pollutants and reducing turbidity.

Erosion Control

Because wetlands slow water velocity and filter sediments, they act as a natural form of erosion control for adjacent waterbodies. They also buffer shorelines and agricultural soils from water erosion.

Pollution Treatment and Nutrient Cycling

Wetlands are natural filters of sorts. They cleanse water by filtering out natural and many manmade pollutants, which are then broken down or immobilized. They also break down organic materials, which are recycled back into the environment, where they support the food chain.

Fish and Wildlife Habitat

Wetlands are a critically important habitat for fish and wildlife. Many species—including endangered species—use wetlands for feeding, nesting, spawning, resting and cover. Wetlands help achieve and foster this biodiversity.

Public Enjoyment

Wetlands provide the opportunity for public enjoyment and recreation, including hunting, fishing, boating, environmental education, interpretation and photography.

So knowing what wetlands are and how important they are to the environment, it should come as no surprise that wetlands are legally protected federally and by the state. Just what those protections are—and how they might affect development—will be the topic of our next blog entry.

To ensure that property owners and occupants are able to act quickly to preserve their homes and property in the wake of disasters, the RRP rule includes an emergency provision exempting firms from certain requirements.

EPA’s Lead Renovation, Repair and Painting Rule (RRP Rule) requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers and follow lead-safe work practices.

This is the first of a number of blog posts that will, over time, address lead paint and lead paint renovation issues. This post starts with the basics of the USEPA Lead Renovation, Repair and Painting Rule based on USEPA’s responses to frequently asked questions about the Rule.

Question: What is lead?

Answer:

Lead is a toxic metal that was used for many years in products found in and around our homes. Lead also can be emitted into the air from motor vehicles and industrial sources, and lead can enter drinking water from plumbing materials. Lead-based paint is present in many homes built before 1978.

The federal government banned the use of lead-based paint in housing in 1978. To learn more about lead, visit www.epa.gov/lead.

Question: Where is lead found?

Answer:

Many homes built before 1978 have lead-based paint. In general, the older your home, the more likely it has lead-based paint. Soil around a home can contain lead from sources like deteriorated exterior paint, past use of leaded gas in cars, or from past renovation activities. Household dust can pick up lead from deteriorating lead-based paint, from past renovation projects, or from soil tracked into a home. If you work with lead, you could bring it home on your hands or clothes. It is important to shower and change clothes before going home. Launder your work clothes separately from the rest of your family’s clothes. To learn more about sources of lead, visit http://www2.epa.gov/lead/learn-about-lead#found.

Question: I thought lead-based paint had been phased out. How many homes still contain lead-based paint?

Answer:

HUD’s National Survey of lead and Allergens in Housing estimated that 38 million permanently occupied housing units (40% of all housing units) in the United States contain some lead-based paint that was applied before the residential use of lead-based paint was banned in 1978. “Housing units” include single-family homes, manufactured housing, and multi-unit dwellings like apartments. Vacant housing, group quarters (e.g., prisons, hospitals, and dormitories), hotels, motels, and other short-term housing, military bases, and housing where children are not permitted to live (e.g., housing designated exclusively for the elderly and those with zero-bedroom units) are not included in this number. More information on these statistics is available from HUD.

Question: What are some of the health effects of lead?

Answer:

Lead is known to cause a range of health effects, from behavioral problems and learning disabilities, to seizures and death. Children six years old and under are most at risk from exposure lead-based paint because they crawl on the floor and they put their hands and other items which can have lead-based paint dust on them into their mouths. Because their bodies are still growing, children tend to absorb more lead than adults.

General Information about the Lead Renovation, Repair, and Painting (RRP) Rule

Question: What is the purpose of the RRP Rule?

Answer:

The purpose of the RRP Rule is to minimize exposure from lead-based paint dust during renovation, repair, or painting activities. This is a key effort in reducing the prevalence of childhood lead poisoning, particularly lead poisoning caused by housing contaminated by renovation activities. This will also minimize exposure to older children and adults who are also adversely impacted by lead-based paint dust exposure. Lead paint was used in more than 38 million homes prior to its ban for residential use in 1978. This paint can form toxic dust when it is disturbed during normal home repair work. EPA’s Renovation, Repair and Painting (RRP) program is designed to reduce lead contamination by training contractors in relatively simple lead-safe work practices, and certifying contractors to make sure that they follow lead-safe work practices. We also want consumers to choose firms that are certified. Given that lead poisoning can cause a wide range of physical, intellectual, emotional, and behavioral issues with societal and financial impacts, this program is prevention-based, cost-effective, and a long-term bargain.

Question: What does the RRP Rule require?

Answer:

The RRP Rule requires that renovators are trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow specific work practice standards. Additional information on this rule can be found at http://www2.epa.gov/lead/renovation-repair-and-painting-program.

Question: Who is covered by the RRP Rule?

Answer:

The rule applies to all firms and individuals who are paid to perform renovation, repair, and painting projects that disturb paint in pre-1978 housing and child-occupied facilities. This includes home improvement contractors, maintenance workers, painters and other specialty trades.

Question: Is it a violation of the RRP Rule for a homeowner to hire a firm that is not certified?

Answer:

The RRP rule does not impose requirements on homeowners, unless they are performing renovations in rental space. However, the hired firm would be in violation of the RRP Rule if it was uncertified and performing a covered renovation.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with lead paint or lead paint renovation issues, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

Few people have heard of vapor intrusion, so what, exactly, is it? In simple terms, vapor intrusion is a process by which subsurface contamination moves into the indoor air space of an enclosed area above it. It happens when volatile, vapor-forming chemicals move from a subsurface source—say contaminated soils or groundwater—through cracks in foundations or other pathways into the indoor air of a building located above that soil. In many instances, these vapor intrusions may not be noticeable. In others, they are: volatile chemicals readily evaporate at room temperature into the air, where you can sometimes smell it. In a worst case scenario, these vapors can accumulate and pose a risk to property or even human health.

Because of the potential risks posed by vapor intrusions, the New York State Department of Health (“NYSDOH”) issued its Final Guidance for Evaluating Soil Vapor Intrusion in the State of New York (“Soil Vapor Guidance”), dated October 2006, which it has been updating since its issuance. The Soil Vapor Guidance is not a binding regulation, but instead offers a recommended methodology for evaluating soil vapor intrusion at a site. It explains methods of sampling and investigative techniques and recommends actions depending on findings.

This past May, NYSDOH issued its latest revision to the Soil Vapor Guidance. It assigned eight common volatile chemicals to three newly revised and renamed Soil Vapor/Indoor Air Decision Matrices. The matrices offer recommendations on remediating vapor intrusions for these volatile chemicals, including Trichloroethene (“TCE”), a chemical commonly used as an industrial solvent and one that often appears at contaminated sites:

Based on the level of contaminant present, the matrices recommend several courses of action, from no action, to monitoring to mitigation.

Should vapor intrusion concern you? The short answer is it depends, but you should at least be aware of the issue.

Keep in mind that the presence of vapor intrusions does not automatically equate to health risk. Whether a person faces potentially harmful effects from vapor intrusions depends on several things, including his sensitivity to the chemical, how long and often he has been inhaling it, and the how toxic the chemical is.

That said, if you are looking to purchase a property with a legacy of industrial use, including the use of volatile chemicals like TCE, then you probably want to understand what any risks for vapor intrusion are before making any purchase. Understanding the risk of soil vapor intrusions should be part of your pre-purchase due diligence—especially if there is a risk that at some point you might get tagged with those cleanup costs.

Similarly, if you own a building where volatile chemicals were used, employees can smell chemicals, and there are cracks or conduits in a concrete floor, you may want to investigate to see if vapor intrusion is a concern. The Soil Vapor Guidance and new matrices give guidance on how to proceed.

Every case turns on its own set of facts, but if you think that vapor intrusion might be concern, a good environmental consultant is the place to start. Sometimes you may want legal advice, too. If you feel you need environmental counsel, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

The Trump Administration has proposed the termination of many Obama administration environmental programs and initiatives and drastic cutbacks to the budget of the United States Environmental Protection Agency.

In response, state of New York Attorney General Schneiderman has stated, “President Trump’s budget cuts would cause untold – and perhaps irreparable – damage to New York’s rivers, lakes, and drinking water. Even before these massive cuts, EPA represents just two-tenths of one percent of the federal budget — yet it’s responsible for protecting our environment and public health. As I’ve made clear: if the Trump administration won’t meet its legal obligation to ensure basic access to a clean, safe, and healthy environment, I won’t hesitate to act to protect New Yorkers.”

Without knowing what will, in fact, happen, set out below is a summary of the most current data on the enforcement initiatives that were undertaken at the federal level nationwide and by one component of the state of New York’s enforcement agencies.

The United States Environmental Protection Agency reported the following results for fiscal year 2016:

More than $13.7 billion in investments by companies in actions and equipment to control pollution. In addition, a case against Volkswagen lodged in June and entered just after the end of fiscal year 2015 adds up to $14.7 billion to remedy Clean Air Act violations.

More than $1 billion in commitments from responsible parties to clean up Superfund sites.

$31.6 million for supplemental environmental projects that provide direct benefits to local communities across the country.

Included in the above totals were the following individual cases or initiatives:

Enbridge, which owns and operates one of the world’s largest oil pipeline systems, is spending at least $110 million on implementing a series of state-of-the-art leak detection and monitoring measures to prevent spills, improve operations and protect communities across nearly 2,000 miles of its pipeline system in the Great Lakes region. Enbridge is also paying $62 million in penalties for oil spills in Michigan and Illinois in 2010.

Sears will implement a comprehensive, corporate-wide program to ensure its contractors minimize lead dust from home renovation activities to protect the health of children and other vulnerable communities from exposure to lead-based paint.

A settlement with national grocery store chain Trader Joe’s Company will reduce potent greenhouse gas emissions from refrigeration equipment at 453 stores nationwide and sets a high bar for the grocery industry for detecting and fixing coolant leaks.

EPA completed more than 100 enforcement actions that require entities like renovation contractors, landlords and property managers to protect communities and public health from exposure to lead. Collectively, the settlements require violators to pay more than $1 million in penalties in addition to returning to compliance with federal lead-based paint rules.

EPA’s criminal program secured $775,000 in court-ordered environmental projects, generated $207 million in fines and restitution and sentenced defendants to a combined 93 years of incarceration. The two owners of Freedom Industries, a chemical processing company, were each sentenced to 30 days in prison and a $20,000 fine for a chemical spill that contaminated the Elk River and drinking water for 300,000 people and vulnerable communities in Charleston, W.Va., and in surrounding areas.

State of New York Statewide Enforcement Totals for the New York State Department of Environmental Conservation Division of Law Enforcement for calendar year 2014 were as follows:

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America. Should you be confronted with an environmental issue of any kind and specifically an environmental enforcement, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

The New York State Department of Environmental Conservation (“NYSDEC”) issues Notices of Violation (“NOV”) to people and companies who it believes have violated New York’s Environmental Conservation Law (“ECL”) or its associated environmental regulations. Typically, the NOV follows a citizen complaint and investigation into the complaint, so often times the NOV’s recipient is aware of its possibility. In some instances, NYSDEC gives parties an opportunity to take corrective action after the investigation, with the NOV being withheld as long as the party follows through. If you are the recipient of an NOV, or of a threatened NOV, what are some steps you should consider?

Treat the Matter Seriously.

Most parties who receive an NOV take it seriously. The ones who get in the most trouble are the ones who ignore them. Sticking your head in the sand like an ostrich and doing nothing is not going to make the problem go away. In fact, it is pretty much a guaranteed way to make matters worse. In some instances, the ECL calls for penalties of up to $15,000 per day for ongoing violations. In other instances, willful violations can constitute misdemeanors, calling for imprisonment of up to one year. While those kinds of penalties are unlikely, they are possible—especially for parties who are non-responsive. If you receive an NOV, don’t let it slip to the bottom of your to-do list. Take it seriously.

Understand the NOV.

The NOV will describe the allegations against you. It will cite the provisions of the ECL or regulations that NYSDEC believes have been violated and provide a short description of how it believes you have violated those provisions. It will inform you of potential penalties. It may provide you with copies of the laws or regulations it claims are violated.

Study these allegations carefully. Just because you’ve been provided an NOV, does not mean that you have violated the law. Sometimes NYSDEC is wrong. Sometimes it does not have all the facts. For that reason, NYSDEC allows you the opportunity to furnish materials for your defense and to request an informal conference with NYSDEC to discuss the allegations. Remember, however, that any information you provide can be used against you in a civil or criminal enforcement proceeding.

Get Prepared.

At some point, you will be talking with NYSDEC to resolve the NOV. In some instances, where the stakes are minor, maybe you feel comfortable doing it yourself—but more often than not, you will want experienced environmental counsel. Remember that an NOV can mean more than fines or penalties. It can mean a criminal investigation. It can lead to a permit revocation or permit denial down the road. If your business relies on that permit to operate, is that something you really want to risk without having the advice of counsel?

You or your counsel should thoroughly understand the provisions you’ve been charged with violating. Is there a potential defense? What records do you have that can show NYSDEC that it is mistaken, maybe in part if not in whole? If you are liable for a violation, maybe you can show mitigating circumstances? Or maybe you have no real defense? You need to know the answer to these questions before you meet with NYSDEC to discuss the NOV.

Be prepared to negotiate.

It may be that you have a complete defense to the NOV and are willing to take the matter to hearing, if NYSDEC will not dismiss the NOV. That happens. You may feel you have no other choice. If so, you want experienced counsel by your side because the risks are high.

But that situation is pretty uncommon. Most NOVs are resolved through negotiations with NYSDEC. The reason why is simple: both NYSDEC and you want the same thing. NYSDEC wants to ensure that you and your company comply with applicable laws and regulations. It wants to be protective of the environment and the state’s citizens. You also want to be in compliance and, if there has been a violation, correct it and ensure you do not have to deal with the issue again. The question is how to you get there and how do you minimize or maybe even eliminate any penalty?

Where it makes sense, following the investigation, NYSDEC often times will provide guidance on what needs to be corrected and, as long as that happens, will hold off on an NOV. If the violations are not grave or too serious—and a party is responsive, has a good history of compliance, and is working with counsel to help facilitate corrective measures—NYSDEC typically is willing to be more lenient. But the converse is also true: if the violations are severe and public health is at stake or the party has a history of violations and non-compliance, or was given an opportunity to take corrective action and failed, then NYSDEC is much less likely to be lenient. The role of environmental counsel can be very important here.

Follow through.

Finally, when you resolve the NOV, follow through on what you promise to do. If your company needs to take protective measures by a deadline, do it—and if it looks like you cannot, let NYSDEC know enough in advance that you are trying but need an extension. You do not want to be tagged as a non-compliant party or a serial violator. Also, take the opportunity to educate yourself and your workers about the law, what is required, what went wrong and how to avoid similar problems in the future. An ounce of prevention is worth a pound of cure: with good guidance, you probably can avoid the cost and aggravation of a future NOV.

If you receive an NOV, it can be an intimidating experience—but environmental counsel can help you through it. If you feel you need environmental counsel, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

When a spill or release of contaminants into the environment results in injuries to natural resources, designated federal, state or tribal natural resources trustees may seek to a recover natural resource damages (NRDs) from the party or parties legally responsible for the spill or release. The goal of the Trustee’s NRD claim is to secure the restoration, replacement, or acquisition of the equivalent of the injured resources and to compensate the public for its lost use of the damaged natural resources. Damages also include the cost of the damage assessment. “Natural resources” that may be the subject of an NRD claim include, but are not limited to, land, water, groundwater, drinking water supplies, air, fish, wildlife, and biota.

Legal Authority

The recovery of damages for injury to natural resources is authorized by both federal and state law. The federal laws are: the Superfund law (i.e., the Comprehensive Environmental Remediation, Compensation and Liability Act or CERCLA), the Oil Pollution Act, and the Clean Water Act. State of New York laws are: the Environmental Conservation Law (ECL), the Navigation Law and common law. CERCLA requires the president and each state governor to designate federal and state officials who will act on behalf of the public as trustees for natural resources. The Governor has designated the Commissioner of Environmental Conservation as the Trustee for New York’s natural resources. The federal Trustee for Onondaga Lake is the United States Department of the Interior (DOI). The Commissioner and USDOI are serving as co-trustees for Onondaga Lake.

Only CERCLA provides a statutory basis for the Onondaga Nation to serve as an NRD trustee. The scope of that authority is both broader possibly more restricted than that of the federal and state trustees. Specifically, the statute reads as follows:

“In the case of an injury to, destruction of, or loss of natural resources under … this section liability shall be …to any Indian Tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in benefit for the trust of such tribe ….”

42 U.S.C. § 9607(f)(1). Related sections of the CERCLA statue appear to limit a Tribe’s ability to recover NRDs, while at the same time other provisions appear to expand the reach of Tribal NRD rights. In sum, the ability, scope and magnitude of the ability of an Indian tribe to be awarded NRDs is less than certain.

There are no exclusions from liability for governmental entities; the definition of “person” expressly includes the United States, states, municipalities, or state political subdivisions. 42 U.S.C. § 9601(21). Congress expressed it clearly: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.” 42 U.S.C. § 9620(a)(1). There are limited exceptions to liability however, such as where a government acquired land involuntarily or through eminent domain, but the general rule is clear: governmental entities receive no special treatment under CERCLA.

Trustee Responsibilities

The trustees have the following responsibilities:

Assess the damage to natural resources. See, e.g., 42 U.S.C. §9607(f)(2)(A). Federal trustees can also, upon request from a state or Indian tribe, assess damages for a natural resource under the state’s or tribe’s trusteeship. 42 U.S.C. §9607(f)(2)(A); 33 U.S.C. §2706(c)(1);

One of the trustees’ primary responsibilities is to conduct an NRD assessment to determine the extent of the injury to a natural resource and determine the appropriate manner by which to restore the resource. A natural resource damage assessment (NRDA) is “the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine damages for injuries to natural resources.” 43 C.F.R. §11.14(aa).

The specific procedures to be followed for CERCLA and CWA NRD claims are found at 43 C.F.R. Part 11. Under the CERCLA and CWA regulations, there are two kinds of NRDAs allowed, depending on the resource damaged, Type A and Type B procedures. Type A assessments are “standard procedures for simplified assessments requiring minimal field observations to determine damages.” 43 C.F.R. §11.14(ss). Type B assessments are “alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages.” 43 C.F.R. §11.14(tt). The significant difference between the two types of assessments is the level of complexity. Type A assessments are “simplified assessments” and primarily use modeling to assess impacts with minimal field observation. 43 C.F.R. §11.40. So far, Type A procedures have only been promulgated for coastal or marine environments and Great Lake environments. See 43 C.F.R. §11.33(a). Type B assessments require more intensive field observation and a more rigorous assessment. The procedure for Type B assessments requires four steps: preassessment screen, injury determination, quantification, and damage determination. See 43 C.F.R. §11.60-11.84. The Onondaga Lake site is undergoing a Type B assessment.

The Department of Interior’s Bureau of Land Management Natural Resource Damage Assessment and Restoration Handbook notes that the NRDAR provisions of CERCLA and the CWA are based on three key principles:

Public natural resources are common property of all citizens. The federal and state governments and tribes act as trustees of these resources on behalf of the public.

The parties responsible for the hazardous substance release or oil spill are liable for the costs of restoring the injured resources and compensating the public for the public losses because of the release or spill until resource restoration is complete.

The trustees may use any damages recovered from responsible parties through the NRDAR process only to restore, replace, or acquire the equivalent resources for the public trust.

Id., at Section 1.2, Purpose of NRDAR.

Upon completion of an NRDA conducted under CERCLA and the CWA, determinations or assessments of NRDs made by a trustee “shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding.” 42 U.S.C. §9607(f)(2)(C) (applying the rebuttable presumption to both CERCLA and CWA NRD claims); 33 U.S.C. §2706(e)(2). These presumptions allow trustees to shift the burden of proof from the trustee onto the defendant who then has to prove by a preponderance of the evidence that the assessment is invalid. Where NRD result from a discharge of a mixture of oil and hazardous substances, trustees must use the CERCLA and CWA regulations (43 C.F.R. Part 11) in order to obtain the rebuttable presumption. 15 C.F.R. §990.20(c).

Trustee Actions to Date for the Onondaga Lake Site

In 1994 the State Trustee prepared an Onondaga Lake Preassessment Screen. It concluded that (1) a discharge of oil or hazardous substances had occurred; (2) natural resources had been or were likely to be adversely affected; (3) the quantity and concentration of released substances was sufficient to potentially cause injury; (4) there was sufficient data to pursue an assessment; and (5) response actions would not be sufficient to remedy the NRD injury. The following comprised the list of hazardous substances believed to have been released: mercury; chlorinated benzenes; polynuclear aromatic hydrocarbons (PAHs); benzene, toluene and xylenes (BTX); ammonia; calcium and calcium salts; and other ionic wastes.

The 1996 State NRD Assessment Plan stated that the State trustee was asserting that “the natural resources in and around Onondaga Lake… have been injured by releases from Allied-Signal Inc. (Allied) of hazardous substances as defined under CERCLA and have created a public nuisance under New York State common law. In addition, the trustee asserts that releases of substances which are not defined as hazardous substances under CERCLA (referred to as non-hazardous substances in this plan) by Allied have also created a public nuisance under New York State common law.” See page xi of the Plan. “The boundaries of the study area generally include all areas in the vicinity of Onondaga Lake where Allied released hazardous and non-hazardous substances and all areas associated with the Onondaga Lake system where injuries to natural resources attributable to those releases have occurred.” Id.

In 2005 the USFWS prepared a Pre-Assessment Screen that reached the same five conclusions found in the 1994 State-conducted Pre-Assessment Screen. The Screen also concluded on pages 5 and 6 that:

Hazardous substances released to Onondaga Lake include, but are not limited to the following: mercury, PCBs, lead, cadmium, chromium, nickel, benzene, chlorinated benzenes, toluene, xylene, PAHs, and pesticides, including aldrin and dichloro-diphenyl-trichloroethane (DDT).

Mercury is the primary contaminant of concern regarding trust resources. It is found in sediments throughout the lake, generally in excess of 1 ppm in surface sediment, with higher concentrations found in the Ninemile Creek delta and in sediments in the southwestern portion of the lake in an area known as “in-lake waste deposit” (ILWD). The southwestern portion of the lake also contains some of the highest concentrations of other chemicals such as BTEX, PCBs, PAHs, dioxins, and furans.

The Trustees have engaged in natural resource injury studies, damage assessments, and restoration planning relating to the Site since 1991. In November 1996, the NYSDEC published its Onondaga Lake Natural Resource Damage Assessment Plan. In May 2009, the Trustees, the Onondaga Nation, and Honeywell entered into a Cooperative Assessment and Funding Agreement through by which Honeywell agreed to participate and provide funding for the performance of a cooperative natural resource assessment. In October 2012, the Trustees and the Onondaga Nation issued the Onondaga Lake Natural Resource Damage Assessment Plan Addendum. It is understood the on-going assessment has determined that sediment, fish, birds, reptiles, amphibians, and mammals sustained ecological injuries from the hazardous substances releases at the Onondaga Lake site and a loss of recreational fishing trips lost as a result of the releases of hazardous substances at the Site.

It is anticipated the Trustees may release a draft Onondaga Lake Natural Resource Damage Assessment Restoration Plan and Environmental Assessment (“RP/EA”) for public comment in 2017. It is not yet known what the Restoration Plan will propose or what type of recovery the Trustee might secure.

An example of a recent NRD settlement is the accord reached between Alcoa, Inc and Reynolds Metals, Co. with the federal state and tribal Trustees for releases that took place in and around Massena, New York. The Trustees’ assessment determined that sediment, fish, birds, amphibians and mammals sustained ecological and remedial injuries and calculated an estimate of the number of fishing days lost as a result of those injuries. The settling parties in Massena agreed to reimburse approximately $1 million in past assessment costs; contribute $7.2 million for Joint Trustee sponsored Natural Resource Restoration Projects; pay $8.3 million for Tribal Cultural Restoration Projects; and purchase and donate two parcels of land to the state of New York to be incorporated into the Wilson Hill Wildlife Management Area.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.